The Principle of Mutual Trust between Member States in the Area of Freedom, Security and Justice

This study discusses, from various angles, the principle of mutual trust between Member States in the Area of Freedom, Security and Justice (AFSJ). As a starting point it refers to three emblematic cases decided by the European Court of Justice: “Aguirre Zarraga”, a child abduction case, “Jawo”, a case involving a transfer of an asylum applicant under the Dublin III regulation, and “LM”, a case concerning a European Arrest Warrant from Poland, called into question by courts in Ireland in the light of problems of judicial independence in Poland. The first section deals with the foundations and legal effects of the principle of mutual trust. Based on a fundamental distinction to be made between the AFSJ and more traditional EU law settings, it argues that the principle of mutual trust is not a freestanding legal requirement but rather a functional construction principle for the AFSJ. The second section explores several possible corollaries of mutual trust - independent authorities, common EU standards on criminal procedure and on penitentiary systems, and EU membership as such - and finds that all these are not quite as straightforward corollaries as they may appear at first sight. The decisive meta-corollary seems is respect for the rule of law. The third section looks at how EU law defines the limits to mutual trust and at the respective roles of the case law and the EU legislator in this context. It finds growing convergence between the two European Court in defining limits and proposes a heuristic distinction between retrospective and prospective settings as a guide for further interpretation. High emphasis is placed on the responsibility of the EU legislator in defining appropriate, tailor-made limits to mutual trust. Looking at the legislative reality so far, marked by various inconsistencies, there is ample room for improvement, but this will remain an arduous task as long as the notorious rule of law problems persist in some Member States. The last section is devoted to the perspective of the EU’s accession to the ECHR, in the aftermath of Opinion 2/13 in which the Court had relied inter alia on the principle of mutual trust to find the draft accession agreement as incompatible with EU primary law. The article dismisses ideas of a “disconnection clause” or of codifying the “Bosphorus presumption” to overcome the mutual trust objection of Opinion 2/13, and instead recommends a combination of a substantive clause on mutual trust and of procedural means to deal appropriately with cases on mutual trust arising in the Strasbourg Court. The final proposition is that the EU’s accession to the ECHR may be seen as a catalyst for mutual trust between EU Member States, promoting the smooth operation of legislative schemes based upon that principle, rather than as an obstacle to it.